Chow Hung Ching v The King

Chow Hung Ching v The King - [1948] HCA 37 - HCA 1948 case summary — Zoe

[8]

By the Papua-New Guinea Provisional Administration Act 1945, s. 16, a single new court was established for both Papua and New Guinea - the Supreme Court of the Territory of Papua-New Guinea. It is from this court that this appeal is brought. Section 16 (9) of the last-mentioned Act is in the following terms: - "The High Court shall have jurisdiction, with such exceptions and subject to such conditions as are prescribed by Ordinance, to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory of Papua-New Guinea, and the decision of the High Court on any such appeal shall be final and conclusive." These provisions in terms give a right to appeal to the High Court without imposing any condition as to obtaining leave. But it will be observed that the jurisdiction of the High Court to entertain appeals is given "with such exceptions and subject to such conditions as are prescribed by Ordinance." No ordinance has been made since the Act was passed, but it was suggested that s. 16 (8) continued the operation of the provision in the Judiciary Ordinance to which reference has already been made. Section 16 (8) provides that: - "Any reference in any law in force in any part of the Territory at the date of the commencement of this Act, to the Supreme Court of the Territory of Papua or the Supreme Court of the Territory of New Guinea, or to a Judge, the Registrar or any other officer of either of those Courts shall, in relation to anything done or to be done after the commencement of this Act, be read as a reference to the Supreme Court of the Territory of Papua-New Guinea, Judge, Registrar or other officer, as the case requires, exercising the jurisdiction, power or authority conferred by or under this Act". This provision, however, refers to the exercise of jurisdiction by the new Supreme Court or its judges, registrar or other officer, and not to the High Court. Accordingly, s. 16 (8) does not in my opinion continue the operation in relation to the High Court of the provision of the Judiciary Ordinance requiring leave to be obtained before this Court can entertain an appeal from the present court. Further, s. 16 (10) repeats a provision as to presenting an appeal in writing without oral argument which is contained in the Judiciary Ordinance, s. 24 (4). Such repetition would be unnecessary if the Judiciary Ordinance still applied. Finally, the word "ordinance" is defined in s. 3 of the Papua-New Guinea Provisional Administration Act to mean "ordinance made under this Act". This interpretation must be applied to the word "ordinance" where it occurs in s. 16 (9) of the Act. No exceptions or conditions have been prescribed under any ordinance made under that Act. Accordingly the High Court has jurisdiction to hear and determine appeals from any judgment &c. of the Supreme Court of the Territory of Papua-New Guinea. Thus the appeals are properly brought before this Court as appeals as of right.

[20]

The uncertainty of the extent of immunity in the case of visiting armed forces is illustrated by the varying language used by authorities upon international law: for example in Hall, International Law, 8th ed. (1924), p. 251, the learned author says: - "and it is believed that the commanders, not only of forces in transit through a friendly country with which no convention exists, but also of forces stationed there, assert exclusive jurisdiction in principle in respect of offences committed by persons under their command, though they may be willing as a matter of concession to hand over culprits to the civil power when they have confidence in the courts, and when their stay is likely to be long enough to allow of the case being watched." I call attention to the words "it is believed". See Pitt Cobbett to the same effect - Leading Cases on International Law, 5th ed. (1931), vol. 1, p. 274. Woolsey, Introduction to the Study of International Law, English edition reprinted from the fourth American edition, (1875), p. 67, quotes Vattell (iii. 8, s. 130) - "the grant of passage includes that of every particular thing connected with the passage of troops, and of things without which it would not be practicable - such as the liberty of carrying whatever may be necessary to an army; that of exercising military discipline on the officers and soldiers; and that of buying at a reasonable rate anything an army may want, unless a fear of scarcity renders an exception necessary, when the army must carry with them their provisions." The learned author continues - "If we are not deceived, crimes committed along the line of march, away from the body of the army, as pilfering and marauding, authorise arrest by the magistrates of the country, and a demand at least that the commanding officers shall bring such crimes to a speedy trial. When the transit of troops is allowed, it is apt to be specially guarded by treaties." Here again the words "If we are not deceived" show an absence of certainty in the statement of the rule. See also Travers Twiss, The Law of Nations, 2nd ed. (1884), Rights and Duties in Time of Peace, p. 271, where the following statement is made: - "if an Independent Power permit the armed forces of another Nation to pass through its territory, this permission implies a waiver on its part of all jurisdiction over the troops during their passage through its territory, and a licence to the commander to maintain that discipline, and to inflict those punishments, which the government of his troops may require." It will be observed that the extent of the licence does not correspond with the extent of the waiver. Such a rule would either make no provision, or at least would leave doubtful what authority could act, in the case of wrongful interference by a member of the armed forces with civilian inhabitants. There might be interference with civilian inhabitants which was wrongful according to local law, but which would not affect the discipline or government of the troops as troops. Accordingly, the licence to the commander to which reference is made would not authorize action by the commander in such a case, and yet it is said that there is a waiver of all jurisdiction by the civil power over the troops.

[23]

In Australia legislation passed during the recent war provided that the authorities of visiting forces should have jurisdiction over their members in respect of matters of discipline and internal administration, but nevertheless preserved the jurisdiction of local civil (as distinct from military) courts: see National Security (Allied Forces) Regulations, regs. 3 and 4. This latter provision (reg. 4) cannot in my opinion properly be construed as preserving such jurisdiction subject to an exemption of members of visiting forces from that jurisdiction in all criminal cases. So to construe reg. 4 would imply an exemption wider than that expressly granted by reg. 3. Regulation 6 contained a special provision that, under certain conditions, members of the United States Forces should "cease to be subject to the jurisdiction of the Criminal Courts in Australia" - a provision which assumes that such jurisdiction would exist apart from this special law. In Great Britain the Allied Forces Act 1940, s. 1, similarly permitted the exercise of powers to secure discipline and internal administration of foreign forces, but s. 2 preserved the jurisdiction of civil courts. In 1942 the United States of America (Visiting Forces) Act, 5 & 6 Geo. VI., c. 31, gave exclusive criminal jurisdiction to United States authorities over members of their forces in the United Kingdom. The schedule to the Act shows that the Government of Great Britain did not recognize any general immunity from local jurisdiction in the case of members of visiting forces: see par. 3 of Note of 27th July 1942 set out in schedule. In Canada it has been held by the Supreme Court that there is no rule of international law in force as part of the law of Canada which deprives the Canadian courts of jurisdiction in respect of offences against the laws of Canada committed on land in Canada by the members of visiting armed forces - Re Reference as to Exemption of U.S. Forces from Canadian Criminal Law [1] . In this case opinions were expressed that no such rule had been recognized in Great Britain. But a minority was of a contrary opinion.

[24]

The result is that it has not been satisfactorily demonstrated that a general exemption from the application of local criminal law is implied in the permitted presence of foreign armed forces within Australia, though there is an implied exemption from such provisions of our law as are inconsistent with the existence of the force as an armed organized force: e.g., as Jordan C.J. said in Wright v. Cantrell [2] , if a foreign force is admitted to the country there must be an implication that any restrictions which would otherwise be applicable under immigration laws are waived, and that the members of the forces will not be subject to prosecution for carrying arms in breach of local law. So much may be implied from the mere fact that the force is present with consent. In a particular case the circumstances may warrant further implications varying with the circumstances, for example, taking part in a ceremonial procession is a very different thing from actual fighting. There is general agreement that in matters of discipline and internal administration the foreign force is exempt from the jurisdiction of local courts. There is no general agreement that the exemption extends any further, and the weight of authority in Australia, Great Britain and Canada is that no wider principle has been clearly established as part of the municipal law to be recognized and enforced by the courts. In my opinion it is not the law that members of visiting forces in a country with the consent of the sovereign are exempt from local jurisdiction in respect of offences committed against the inhabitants of the country, and more especially this is not the case if those offences have no relation to the military activities of the armed forces. Accordingly, in my opinion, the principle which is relied upon for the purpose of excluding the jurisdiction of the Supreme Court of Papua-New Guinea has not been shown to exist as part of the municipal law of the Territory. Upon this ground, therefore, the appeals should in my opinion be dismissed in so far as they depend upon an objection to jurisdiction.

[26]

Any persons who rely upon the principle must show that they are in fact members of an armed force. The Executive Government of the Commonwealth cannot, by undertaking to treat as part of the military forces of a foreign country a body of men who are not in fact members of such forces, exclude the jurisdiction of Australian courts in relation either to foreigners or to members of the community of Australia. The Executive Government has, in my opinion, no authority to determine conclusively that certain persons are members of a foreign army and by such a determination to deprive the Australian people of resort to their own tribunals for the purpose of enforcing their claims or protecting their rights. If persons are members of such forces and if they are in Australia by governmental consent, then some principle of immunity applies, but the question of whether they are part of the military forces of another State is a question of fact which must be determined by the court before the question of jurisdiction arises. This, in my opinion, is not a question in relation to which a court will be bound by any statement of the Executive Government of the Commonwealth, even, indeed, if such a statement is admissible as evidence. It is obvious that an Australian court cannot take judicial notice of the laws of a foreign country with respect to the establishment and the constitution of its armed forces. No authority has been cited to show that upon such a question a court is bound to accept a statement made by the Executive Government of the country in which the question arises. There are certain matters in respect of which a statement by a Minister is accepted by a court as conclusive, e.g., the question as to whether a person is a foreign sovereign, or whether a foreign State exists, or whether territory belongs to a foreign State, or whether a person has been recognized as a foreign ambassador or as a member of a diplomatic staff, or whether a ship is a warship or a public vessel of a State. There is authority that the answer of the appropriate minister will be accepted by a court as conclusive on these matters, but, as already stated, there is no authority that such a statement is to be accepted by a court when the question is whether a particular individual belongs to a foreign navy or army or air force. Whether he so belongs or not is a matter of law and fact which does not depend upon any recognition of his position by the Government of any other country.

[64]

The appellants were convicted upon two charges before the Supreme Court of the Territory of Papua-New Guinea. The Court is established by s. 16 of the Papua-New Guinea Provisional Administration Act 1945. The convictions were for assaulting a native and for detaining him in a hut against his will. Upon the first charge the appellants were each sentenced to three months' imprisonment and upon the second to six months' imprisonment. They now appeal to this Court against both the convictions and the sentences. They claim that they were not subject to the jurisdiction of the Supreme Court of the Territory and they complain that the sentences are excessive and ill founded. Section 16 (9) of the Act purports to give this Court jurisdiction with such exceptions and subject to such conditions as are prescribed by ordinance to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. This provision is framed by analogy to s. 73 (ii) of the Constitution and upon the assumption that the Supreme Court of the Territory is not a Federal Court. A reference to Jolley v. Mainka [1] and Ffrost v. Stevenson [2] will show that on any view our jurisdiction to entertain the appeals cannot now be denied. Unless an ordinance has been made imposing a condition that leave shall first be obtained the appellants are entitled to appeal as of right. An attempt was made to show that s. 16 (8) operated to make applicable to appeals from the new Supreme Court of the Territory of Papua-New Guinea the respective ordinances governing appeals from the old Supreme Courts of the two Territories. But it is not aptly expressed to carry over references to appeals to this Court and in any case nothing but an ordinance under the new Act (see definition in s. 4) would suffice to make an exception or condition under s. 16 (9). I do not think that Ordinance No. 4 of 1945 satisfies the requirements. We are therefore bound to entertain the appeals. The distinction between an appeal by leave and an appeal as of right might be important with reference to the sentences, a matter upon which the Court would probably not readily grant leave.

[68]

It would be a violation of the first country's sovereignty if the armed forces of the second entered or remained without the express or implied permission of the first. Just as a ship of war is considered as the manifestation of the sovereign power of a nation, so with an organized military force under command. Further, from the nature of the case the ship of war and the armed force must bring with them their own naval and military discipline and that involves as a consequence not only the administration of their own naval and military law but also some freedom from interference by the courts and other authorities administering the municipal law of the territory that is visited or entered. Internationally it is sufficiently apparent that the limits of this immunity may, and usually will, be settled by agreement. It is therefore not surprising that when internationally it is left to implication, no more than a bare permission for the entry of troops being given, the rules of public international law remain uncertain or unclear as to the precise implication to be made. In the case of ships of war and perhaps of public ships generally it is otherwise. The visit of a ship of war of a friendly foreign power is so commonplace and ordinary an event that there has come into existence a clearer understanding of the limits within which the commander exercises exclusive jurisdiction over his officers and ratings. In respect of all matters occurring aboard, the jurisdiction and law of the flag prevails and is exclusive. Nevertheless as to offences committed by officers or men while ashore there is a doubt. It is agreed that, unless surrendered by the civil power, they should be considered amenable to the local jurisdiction in respect of offences committed while ashore on leave or for any purpose that is not official. But writers do not agree as to whether the jurisdiction of their commander over them which is conceded even in respect of offences committed ashore ought not to be treated as exclusive if the officer or rating concerned was ashore upon official duty. See Oppenheim, International Law, 5th ed. (1937), vol. 1, par. 451, p. 668. Be this as it may, the visit of a foreign ship of war or other public ship is such an ordinary transaction of international life that it is assumed to be permitted upon necessary or proper occasions and is subject to customary rules and procedures which for the most part are well ascertained and at all events cause little or no difficulty in practice.

[70]

It is obvious that the whole question involves in the case of the British Commonwealth the authority of the Crown in the conduct of foreign relations. It is a mistake to treat the question of the extent of the immunity as one depending upon the recognition by Great Britain of a rule of international law. In the first place the theory of Blackstone (Commentaries, (1809), vol. 4, p. 67) that "the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land" is now regarded as without foundation. The true view, it is held, is "that international law is not a part, but is one of the sources, of English law" (Article by Prof. J. L. Brierly on International Law in England, Law Quarterly Review (1935), 51, p. 31.). "In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become a source of, English law" (Sir William Holdsworth, Relation of English Law to International Law; Essays in Law and History, p. 267.). In the second place, in as much as the immunity claimed arises from the permission given by the Crown to another power to send troops into territory under the jurisdiction of the Crown, the question whether that immunity exists must depend upon two matters governing the legal effect of the Crown's act. The first is the authority of the Crown under our form of government to bind the nation in the conduct of affairs with other nations. The second is the extent to which the common law recognizes and gives effect to the immunity or privilege from local jurisdictions and laws which under that head the Crown accords to the sovereigns of friendly foreign nations and those who come under their authority representing either the civil power of the state diplomatically or its armed strength in the form of bodies of troops or of ships of war. "With regard to foreign concerns," wrote Blackstone (Commentaries, (1809) vol. 1, p. 252), "the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendour, and power, that make him feared and respected by foreign potentates; who would scruple to enter any engagement, that must afterwards be revised and ratified by a popular assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men."

[71]

It has remained true that what is done by the royal authority with regard to foreign powers is the act of the whole nation. But the consequences which an exercise by the Crown of this authority produces upon the rights duties and immunities of persons under the common law vary according to the nature of the thing done. A declaration of peace or war produces definite consequences because the rules of the common law govern the conduct of the king's subjects with reference to a state of war. But a treaty, at all events one which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty: Walker v. Baird [1] . On the other hand the recognition by the Crown of the sovereignty of a foreign State or government does produce under the common law immediate effects municipally. If the Crown receives a foreign sovereign the law immediately attaches to him an immunity and he is not amenable to the local jurisdiction. It may be assumed that, without the statute 7 Anne c. 12, English law would have attached to ambassadors and ministers plenipotentiary received by the sovereign a full, or at all events a wide, immunity from local jurisdiction. We have seen that at common law foreign public ships enjoy an immunity when with express or tacit consent they visit British ports. These are the results of the establishment of domestic rules of law calculated to give effect to the action of the Crown with regard to foreign nations. Thus the question here is not so much the existence and extent of a binding rule of the law of nations but rather whether a rule of the common law exists which will give effect to the act of the Crown in permitting the entry of foreign troops under command, the permission being accompanied by an express or implied concession to the foreign sovereign of exclusive disciplinary powers and jurisdiction over the members of the force while in the territory to which they are admitted.

[76]

But of great importance is the reliance placed upon the judgment of Marshall C.J. by Lord Atkin speaking for the Privy Council in Chung Chi Cheung v. The King [5] . Their Lordships were dealing with the jurisdiction of a British court in respect of a charge of murder committed within British territorial waters aboard a foreign armed public ship by a member of the ship's company. It was decided that for a crime so committed there was a conditional immunity from the jurisdiction of the territorial courts, not because such a ship was considered as a floating part of the territory of her flag, but because our municipal law accorded a conditional immunity from the jurisdiction of our courts in conformity with the doctrine of the law of nations. The condition is that the foreign country to which the public ship belongs does not waive the immunity and consent to the exercise of the local jurisdiction. The immunity flows from a waiver by the territorial sovereign of jurisdiction in favour of the foreign sovereign to whom the ship belongs and accordingly may be exercised if the foreign sovereign waives the immunity. In the particular case their Lordships were of opinion that the immunity had been waived. In his reasons Lord Atkin [6] propounded the question "What, then, are the immunities of public ships of other nations accepted by our Courts, and on what principle are they based?" By way of answer his Lordship proceeded: "The principle was expounded by that great jurist Chief Justice Marshall in Schooner Exchange v. M'Faddon [7] a judgment which has illumined the jurisprudence of the world." Lord Atkin quoted freely from the passages in which Marshall C.J. showed how the existence of nations with independent sovereignties and the intercourse among such nations gave rise to situations in which the exclusive territorial jurisdiction of one must be understood as waived in favour of an agency of another. In the course of enumerating the instances given by the Chief Justice his Lordship gives the example with which we are presently concerned. Lord Atkin says [1] : "The judgment then proceeds to the third case "in which a sovereign is understood to cede a portion of his territorial jurisdiction," namely, "where he allows the troops of a foreign prince to pass through his dominions." The Chief Justice lays down that "The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require." He points out that, differing from the case of armed troops, where an express licence to enter foreign territory would not be presumed, the private and public vessels of a friendly power have an implied permission to enter the ports of their neighbours unless and until permission is expressly withdrawn."

[87]

Writers upon international law adopt different opinions about the scope of the rule as between nations. Oppenheim takes the view that the immunity is confined to crimes committed either within the place where the force is stationed or while the offender was on duty though elsewhere ( Oppenheim, International Law, 5th ed. (1937), vol. 1, pp. 662, 663, par. 445). The language of Marshall C.J. however is universal "a waiver of all jurisdiction over the troops during their passage" and it is thus quoted by Lord Atkin [1] . It is reflected in the statements of the rule by Wheaton (International Law, 6th ed. (1929), p. 234), by T. A. Walker (Manual of International Law, p. 83) and by Lawrence (International Law, 3rd ed., p. 223). Sir Arnold Duncan McNair in his Legal Effects of War, 2nd ed. (1944), p. 356, after speaking of the allowance of the jurisdiction of the flag over the crews of foreign public ships says "and a similar jurisdiction is allowed over the members of foreign armed forces, at any rate in respect of offences committed while on duty or within their own lines. In both cases the exercise of this jurisdiction is implied from the permission given by the local sovereign for the entry of the foreign public ships or the armed forces." Presumably the learned author regards the exclusion of local jurisdiction as co-extensive with the grant of liberty to exercise foreign naval or military jurisdiction. See further An Introduction to International Law by J. G. Starke (1947), pp. 150, 151. Conflicting considerations of expediency may be urged in favour of one or other of the rival solutions of this problem. On the one hand it may be said that the citizen's right to invoke the courts of his own country to redress wrongs done to him within their territorial jurisdiction while moving about as a civilian ought not to be abrogated; that he has this right against members of the armed forces of his own country; and that he might not be able to obtain or even seek redress from the foreign command. It may be remarked that the analogy of the situation of servicemen of the citizen's own country is misleading. For there the question is only between the civil and military power of the same nation.

[103]

In my opinion the objection which is made on behalf of the appellants to the jurisdiction of the Supreme Court of the Territory should fail. The objection is founded on the "third case" described by Marshall C.J. in the case of The Schooner Exchange v. M'Faddon [1] in which a sovereign is understood to waive the exercise of territorial jurisdiction. I do not repeat the quotation of the passage. It is necessary to read the judgment of Marshall C.J. with the judgment of the Judicial Committee in Chung Chi Cheung v. The King [2] , to ascertain to what extent the principles enunciated in the former case are recognized by the common law. In considering the authority of writings on international law it is necessary to remember the warning given by the Judicial Committee in the last-mentioned case [3] ; see also Halsbury's Laws of England, 2nd ed., vol. 6, p. 504 and note (s). Marshall C.J. said that the sovereign is to be understood to waive territorial jurisdiction, in the case to which allusion has been made, over "the troops of a foreign prince." The Chief Justice also refers to such a body as "the army to which this right of passage has been granted" and "a military force" [4] . Lord Atkin used the term "armed troops" ( Chung Chi Cheung v. The King [1] ) as an equivalent of the terms "troops," "army" and "military force" which Marshall C.J. used. The nature of the body which the Chief Justice had in mind can be inferred from the whole of his discussion of the "third case." I think that what is meant is an organized body armed for war. It may be a little or large body. The evidence in the present case shows that the body or party to which the appellants belonged was not of this character. They were members of a party disciplined after a military pattern; but they were essentially a party of labourers and tradesmen; they did not enter the Territory to pursue national objects of the order which a friendly foreign power would send an army or a military force to accomplish. These men wore uniform but they were not armed or engaged to do military duties; they were not an adjunct to a military force stationed in the Territory. I am unable to agree that it sufficiently appears from the materials before the Court that the appellants belonged to a detachment of troops of the Republic of China. It is therefore unnecessary to express an opinion on the question of the immunity at common law of visiting troops sent by a friendly power. The appellants were aliens temporarily resident in the Territory but were subject to its laws unless exempt. There is no statute exempting them.

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